Legal view: Concrete examples needed to inform code of conduct

The conduct framework needs to be fleshed out with examples if it is to regulate behaviour, writes Ed Mitchell

The GSCC has adopted a largely principles-based conduct scheme rather than a more prescriptive rules-based scheme.

This may explain the wide variation of opinion as to what is and is not acceptable when it comes to social workers’ personal relationships as revealed by the Community Care research. Principles-based schemes have their benefits but the greater their role in a regulatory scheme, the more difficult it is to predict its application. The GSCC may not have had the balance quite right.

The legal structure

The GSCC’s rules set the threshold for regulatory action at the point where a social worker is guilty of misconduct “which calls into question” a person’s “suitability” to be registered as a social worker.

Little flesh is added to these bare regulatory bones by the statutory code of practice. The code includes the statement that a social worker must not “form inappropriate personal relationships with service users” but does not offer any indication as to what might be “inappropriate”.

However, several decisions of the Care Standards Tribunal give authoritative rulings on appeals against GSCC decisions.

Tribunal decisions

● McNicholas v GSCC concerned a social worker who, when drunk, rang and sexually propositioned a client. Although not at the “severe end of the spectrum”, the client, a user of mental health services, was particularly vulnerable and the social worker had denied the allegations for many months exacerbating the client’s distress. In the circumstances, therefore, it was serious misconduct, and the tribunal upheld the decision to remove from the register.

● DSH v GSCC concerned a mental health social worker who formed a sexual relationship with a service user. She was not a client, but they met when the social worker was visiting a day centre. Having taken into account the social worker’s exemplary service and genuine remorse, the tribunal, while critical of his actions, decided that the GSCC had acted too harshly and should register him.

● Bradford v GSCC involved a social worker who had a six-week sexual relationship with a client who was suffering from depression. The tribunal held that this misconduct was “so serious” that it upheld the GSCC’s decision to impose an interim suspension order that prevented the worker from practising until the GSCC had conducted its enquiries.

● YD v GSCC involved a social worker who was advertising as an escort. It is useful because the tribunal set out its thinking on registration – behaviour that undermines that purpose is likely to be treated more severely. The tribunal said: “Vulnerable clients…need to trust the professional working with them. Any action that undermines that trust must call into question the suitability of an individual to work in social care.”

● Ed Mitchell is a solicitor, editor of Social Care Law Today, and Community Care’s legal expert